Laws that subvert the rule of law

When John Adams wrote into Massachusetts’ Constitution a commitment to a “government of laws and not of men,” he probably assumed that the rule of law meant the rule of laws, no matter how many laws there might be. He could not have imagined the modern proliferation and complexity of laws, or how subversive this is of the rule of law.

Such a subversion will confront Congress when it reconvenes. Congress is nimble at evading responsibilities but cannot avoid deciding either to repudiate or to tolerate a residue of President Obama’s lawlessness, one that most, perhaps all, congressional Democrats and many, perhaps most, Republicans want Obama’s successor to continue.

The Affordable Care Act (Obamacare) requires insurance companies to insure people with “pre-existing conditions,” a locution minted to avoid the awkward candor of saying, in most cases, “people who are already sick.” The individual mandate, requiring people to purchase insurance, is one way the ACA subsidizes insurance companies that are mandated to engage in money-losing undertakings.

Low-income purchasers

The subsidy that Congress must confront in September is the ACA requirement that the secretary of health and human services devise a program to compensate insurers for the cost of selling discounted plans to some low-income purchasers. Obama’s HHS secretary created a program to disperse billions of dollars to insurers to defray the costs of the low- income purchasers who are more than half the ACA enrollees.

But – speaking of awkwardness – although the ACA authorizes a permanent expenditure for this, an authorization is not an appropriation, and Congress has never provided an appropriation. Come September, these payments may dramatize the increasing difficulty of discerning Republican and Democratic differences commensurate with their heated rhetoric. Democrats are untroubled by the payments because progressives believe that unfettered presidents are necessary to surmount the inefficiencies, as progressives see them, inherent in the Framers’ great mistake, as progressives see it – the separation of powers. Republicans, however, have a dilemma: Halting the payments might unleash chaos; continuing them seals Republican complicity in perpetuating the ACA.

The Constitution says: “No money shall be drawn from the treasury, but in consequence of appropriations made by law.” Nevertheless, the Obama administration spent the money for the insurance subsidies, breezily arguing that it was being faithful to something higher than the Constitution – the ACA’s text. Or its logic. Or something. Republican members of the House (including Georgia’s Tom Price, who now is secretary of HHS) sued to stop the payments. In May 2016, a federal judge said they were right on the merits but stayed the decision to allow the Obama administration to appeal.

Donald Trump has exceeded Obama’s executive willfulness, which at least strove for a patina of implausible legality. Last month, Trump said that, absent Republican success in replacing the ACA, he might end the payments “very soon.” Clearly, he thinks either spending or not spending unappropriated billions is a presidential prerogative.

The Constitution – yes, that again – says that presidents “shall take care that the laws be faithfully executed.” The framers, who were parsimonious with words, perhaps included the adverb for the reason Noah Feldman of Harvard Law School suggests: “The Constitution recognizes that the president can’t necessarily enforce every law. But it requires a good faith effort.” So, the intent of any non-enforcement matters: Is it to husband scarce enforcement resources? Or is it to vitiate a law?

Trump’s unparsimonious dispensing of words has included threats to intentionally cause the ACA to “implode” by halting the unconstitutional disbursement of unappropriated money. Feldman evidently thinks this would be “non-enforcement” in bad faith because the law could no longer function. It is, however, strange to say that dispensing unappropriated funds is faithful “enforcement” of a law just because without the funds the law would collapse.

Potential chaos

Were Trump constitutionally punctilious – entertain the thought – he would embrace the judge’s ruling on behalf of the House members, and, obedient to his oath of office, stop the unconstitutional payments. But chaos might envelop the ACA exchanges and then the wider individual insurance market, causing many millions of Americans severe mental and financial stress. Republicans can say “let the rule of law prevail though the heavens fall,” or they can say ...

Enter Sen. Lamar Alexander, the Tennessee Republican who chairs the pertinent committee. He wants Trump to “temporarily” continue the payments “through September,” pending “a short-term solution” for stabilizing insurance markets “in 2018.” Watch carefully as Alexander copes with a pathology of modern – meaning, presidential – government unanticipated by John Adams: laws that subvert the rule of law.